The keys to the Supreme Court’s decision on the ‘only yes is yes’: reductions but not generalized

The Criminal Plenary has not yet made its resolutions public with arguments, but sources from the organization consulted by elDiario.es and the available data on the judicial cases examined suggest that its criteria on reducing final sentences is similar to that applied in cases of crimes still in process: if a rapist was imposed the minimum sentence provided for in the previous Penal Code, his prison sentence must be adapted to the new minimum sentence of the ‘only yes is yes’ law, lower in most cases of the crimes

This keeps a door open through which judges across the country have lowered hundreds of sentences since October, but it also reinforces a filter: if a sentence was imposed halfway between the legal maximum and minimum possible and that sentence is still existing in the new Criminal Code promoted by the Ministry of Equality, the penalty is not touched.

In practice, this jurisprudence of the Supreme Court supposes a partial setback to the Prosecutor’s Office and to the circular on which they based several hundred appeals against reductions in sentence for an application of the law of ‘only if it is yes’ that it considered erroneous. Partial because it leads all those resources to failure and predicts the finality of hundreds of reductions to be studied, but also because most of the cases that have reached the Supreme Court have remained in their original sentence following the criteria of the Public Ministry.

This is demonstrated by the numbers of the second room, the only instance in which it is possible to know how many cases are lowered and how many are maintained. According to the latest data available, the Supreme Court has signed 20 reviews of a total of 47 cases analyzed in the appeal phase. As for the already final and revised sentences, the Criminal Chamber announced this Wednesday that it approved the reduction of seven cases and maintained the sentence in another 22 more. A 35% discount on the total sentences and orders studied by the Supreme Court.

The General Council of the Judiciary collects the data from the territorial courts but with holes in the statistics due to the lack of data. The latest update, from last May, showed a total of 1,079 reductions in sentences which, in turn, had led to a total of 108 releases of sex offenders. Half of the superior courts and 20% of the provincial courts report how many reductions come out of their criminal chambers, but not how many are examined in total. The percentage of reductions in these territorial courts, with these data gaps, remains at 30.9% of the total.

Minimum sentences, candidates for reduction

There are also no reliable statistics on how many sex offenders leave the bench with a minimum sentence and how many do so with an intermediate sentence, so it is not possible to predict the flow of reductions in the coming years. The numbers from the National Institute of Statistics (INE) reflect that each year there are more than 3,000 people convicted of sexual crimes in Spain and that most are convicted of sentences of no more than two years in jail, the lower range than before. It was called sexual abuse.

What does it mean that the Supreme Court endorses the criteria of the provincial courts, as the Criminal Chamber announced yesterday after two days of deliberations? That when reviewing the final sentence of a rapist, those who were sanctioned with the minimum sentence for their crime in an argued manner by the judges will see their sentence lowered. From the old minimum sentence to the new minimum sentence.

The Supreme Court will make public in the coming days the 29 cases it studied this Wednesday. A total of seven will be resolutions that reject appeals from the Prosecutor’s Office against reductions signed in territorial courts. For example, the reduction from eight to six years in prison for a pedophile who abused a little girl in the Basque town of Leioa. “Having changed that minimum, we consider that we must be at such a change and therefore we will review the sentence,” said the judges of the Bizkaia Court.

It is a criterion that the Chamber had already deployed when studying cases that had not yet been finally sentenced but which the entry into force of the ‘only yes is yes’ law caught on the way to the Supreme Court. For example, when the prison sentence of a pedophile who raped a minor in a field in the Almeria town of Campohermoso was reduced from 12 to 10 years. “The decrease in the minimum limit for which they opted at the time without objecting to reasons that, according to their criteria, justified a greater reproach translated into an amount of penalty determines the retroactive application of the new norm,” said the Supreme Court at the time.

But most of the requests for firm reductions in this first batch, 22 out of a total of 29, have been rejected by the Supreme Court. Some of them endorsing the criteria of the territorial courts of not modifying an intermediate and viable sentence with the new Penal Code. For example, the seven years in prison imposed on a man who raped a friend in Soria: “The review would only fit in the case that the penalty had been set at its minimum length, six years,” said the judges.

In these 22 cases, the sentences have been maintained with the approval of the Prosecutor’s Office. For example, the 60 years in prison imposed on a police officer from the Castellón town of Burriana who raped several minors. Or the 14 years imposed on the owner of a workshop in the Galician town of Muros for raping a young man with mental disabilities. Cases in which judges justified raising sentences above the legal minimum, also possible with the ‘only yes is yes’ law.

The future after the second reform

The law of ‘only yes is yes’ and its criminal consequences became the biggest point of friction between PSOE and Podemos within the coalition executive, to the point that the Socialists relied on the PP to promote the reform of the law and try to block the waterway of the sales.

The reform, in force since the end of April 2023, maintains a single crime of sexual assault but brings the sentence ranges closer to those in force before the legal change promoted by Equality. The preamble of the reform is explicit and points directly to the low minimum sentences as the cause of the cascade of reductions: “It is important to shield the law in favor of the victims and avoid the unwanted effect of a possible application of the minimum sentences of the new penal frameworks, which are broader”, Explain.

The reform points to the origin of the problem but its effects are far from immediate. Rapists and abusers who commit crimes before April 29, 2023 may continue to request that their case be seen in the light of the previous version of the ‘only yes is yes’ law, whether they have already been finally sentenced or are pending trial. The new parameters can only be applied to crimes committed after the entry into force, so in no case does it imply nipping the trickle of rebates at the root.

While waiting to hear all the arguments from the Supreme Court to reject these seven appeals from the Prosecutor’s Office and 22 from firmly convicted sex offenders, the scaffolding of the cases studied implies the consolidation of a doctrine that leaves more confirmations than downward revisions but also the definitive judicial endorsement for the territorial courts to continue, for several years, signing those “undesired effects” of the application of a norm that the coalition government was about to take away.